The Blog

Emergency Paid Leave Programs

On April 1, the U.S. Department of Labor (DOL) announced new action regarding how “American workers and employers will benefit from the protections and relief” offered by the Emergency Paid Sick Leave Act (EPSLA) and Emergency Family and Medical Leave Expansion Act (EFMLEA), bot part of the Families First Coronavirus Response Act (FFCRA), enacted on March 18. DOL’s Wage and Hour Division (WHD) posted a temporary rule issuing regulations pursuant to this new law, effective April 1, 2020, and expiring on December 31, 2020. Face sheets for both employees and employers regarding both programs are available here and here, which provide specific information on the length of leave, calculation of pay, and qualifying reasons for leave. Additionally, DOL has released several “Questions and Answers” documents, which can be found here. The National Law Review has also issued a comprehensive legal analysis of the two emergency paid leave programs.

Notably, public agencies (including local governments and other political subdivisions) are required to provide the benefits of both the EPSLA and FFCRA programs to their employees, however, these public agencies are not eligible to receive the reimbursable tax credits from the federal government to offset the costs of these paid leave programs, impacts to public agencies, and next steps.

The FFRCA provides that covered public employers must provide to all employees:

Two weeks (up to 80 hours) of paid sick leave at the employee’s regular rate of pay where the employee is unable to work because the employee is quarantined (pursuant to Federal, State, or local government order or advice of a health care provider), and/or experiencing COVID-19 symptoms and seeking a medical diagnosis; or

Two weeks (up to 80 hours) of paid sick leave at two-thirds the employee’s regular rate of pay because the employee is unable to work because of a bona fide need to care for an individual subject to quarantine (pursuant to Federal, State, or local government order or advice of a health care provider), or care for a child (under 18 years of age) whose school or child care provider is closed or unavailable for reasons related to COVID-19, and/or the employee is experiencing a substantially similar condition as specified by the Secretary of Health and Human Services, in consultation with the Secretaries of the Treasury and Labor.

A covered public employer must provide to employees that it has employed for at least 30 days up to an additional 10 weeks of paid expanded family and medical leave at two-thirds the employee’s regular rate of pay where an employee is unable to work due to a bona fide need for leave to care for a child whose school or child care provider is closed or unavailable for reasons related to COVID-19.

Under the FFCRA, an employee qualifies for paid sick time if the employee is unable to work (or unable to telework) due to a need for leave because the employee:

is subject to a Federal, State, or local quarantine or isolation order related to COVID-19;

has been advised by a health care provider to self-quarantine related to COVID-19;

is experiencing COVID-19 symptoms and is seeking a medical diagnosis;

is caring for an individual subject to an order described in (1) or self-quarantine as described in (2);

is caring for a child whose school or place of care is closed (or childcare provider is unavailable) for reasons related to COVID-19; or

is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services, in consultation with the Secretaries of Labor and Treasury.

Under the FFCRA, an employee qualifies for expanded family leave if the employee is caring for a child whose school or place of care is closed (or childcare provider is unavailable) for reasons related to COVID-19.

Duration of Leave:

For reasons (1)-(4) and (6):A full-time employee is eligible for up to 80 hours of leave, and a part-time employee is eligible for the number of hours of leave that the employee works on average over a two-week period.

For reason (5):A full-time employee is eligible for up to 12 weeks of leave at 40 hours a week, and a part-time employee is eligible for leave for the number of hours that the employee is normally scheduled to work over that period.

Calculation of Pay:

For leave reasons (1), (2), or (3): employees taking leave shall be paid at either their regular rate or the applicable minimum wage, whichever is higher, up to $511 per day and $5,110 in the aggregate (over a 2-week period).

For leave reasons (4) or (6): employees taking leave shall be paid at 2/3 their regular rate or 2/3 the applicable minimum wage, whichever is higher, up to $200 per day and $2,000 in the aggregate (over a 2-week period).

For leave reason (5): employees taking leave shall be paid at 2/3their regular rate or 2/3 the applicable minimum wage, whichever is higher, up to $200 per day and $12,000 in the aggregate (over a 12-week period—two weeks of paid sick leave followed by up to 10 weeks of paid expanded family and medical leave).